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Univ. of South Carolina School of Law

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Friday, March 9, 2012

Lack Of Immediacy: Court Of Appeals Of North Carolina Finds Statements Were Excited Utterances & Present Sense Impressions

Like their federal counterpartsNorth Carolina Rules of Evidence 803(1) and (2) provide exceptions to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

and

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Often both of these exceptions apply in the same case as was the case with the recent opinion of the Court of Appeals of North Carolina in State v. Moore, 2012 WL 698593 (N.C.App. 2012). Or was it?

In Moore, Xavier Moore was convicted of second-degree murder based upon the stabbing death of Keanan Odom. The evidence presented at trial tended to show that the

defendant went to Northgate Mall in Durham on the night of 13 October 2007 with friends. Keanan Odom (Odom) and his girlfriend, Courtnie Scott (Scott), were also at the mall that evening along with some of Odom's friends, including Jamarcus Umstead (Umstead). Scott noticed defendant and informed Odom that he was at the mall too. Odom and his friends then went looking for defendant and as they approached him Umstead hit defendant in the face. Defendant stumbled back and then grabbed Odom and began to fight him. Defendant held onto Odom's jacket and jabbed at his body several times before defendant was wrestled away. After the fight concluded, defendant attempted to leave the mall but was pursued by security and cited for trespass.

Odom, on the other hand, was rushed to the hospital by Scott and later died from his injuries. While at the hospital, Scott spoke to Umstead and learned that he hit defendant because defendant pulled out a knife. Umstead also told Odom's mother that he hit defendant because defendant pulled out a knife. However, Umstead was unavailable to testify at defendant's trial because he died in 2009. Over defendant's objections, Umstead's statements were introduced into evidence.

After Moore was convicted, he appealed, claiming that Umstead's statements were inadmissible hearsay. The Court of Appeals of North Carolina disagreed, finding that the statements qualified as both present sense impressions and excited utterances because

The record demonstrates that Umstead's statement to Scott about defendant having a knife was made a short time after the fight occurred and in which Umstead participated. Further, Umstead's statement to Scott was made spontaneously while he was under the stress of excitement of the fight as well as immediately after learning that Odom had just died as a result of the fight with defendant.

I certainly agree that the statements were excited utterances, but were they present sense impressions? Were they really made immediately after seeing Moore with the knife? The court's opinion doesn't give us an exact timeline, but it seems that a decent amount of time passed between this event and Umstead making his statements at an entirely different location. I think that too much time and distance likely passed for Umstead's statements to qualify as present sense impressions, which, of course, doesn't matter as long as they qualified as excited utterances.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/03/like-their-federal-counterpartsnorth-carolina-rules-of-evidence-8031and2provide-exceptions-to-the-rule-against-hearsay-f.html

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